Employers with HR departments understandably seek support from HR when disciplining employees but it is important that they do not become the decision maker.
This was highlighted in the recent case of Ramphal v Department for Transport the EAT considered that a dismissal was rendered unfair by a disciplinary investigation which had been heavily influenced by HR.
What happened?
Mr Ramphal was employed by the Department for Transport and, as part of his role, was required to spend a significant amount of time on the road, for which he was entitled to claim subsistence. He was not allowed to use his company credit card for personal expenditure and there were limits on the subsistence to which he was entitled when close to home.
Mr Ramphal was selected for an audit of his transport and subsistence claims and concerns were raised about his claims, including excessive petrol use, use of the hire car for personal reasons, and suspicious purchases such as buying two cups of coffee. Mr Goodchild was appointed to carry out an investigation. He was also to be the disciplinary officer.
After the disciplinary hearing, Mr Goodchild sent the first draft of his report to HR. Although his report was partly critical, it contained a number of favourable findings in relation to Mr Ramphal. For example, Mr Goodchild found that Mr Ramphal’s misuse was not deliberate; he found that explanations given by Mr Ramphal for expenditure on petrol were "consistent" and "plausible" and that he had made a persuasive argument in relation to his fuel expenditure. Mr Goodchild’s recommendation was for a finding of misconduct, with the sanction of a final written warning.
There followed approximately six months of communications between HR and Mr Goodchild, leading to a complete change of view on Mr Goodchild’s factual findings and recommendations as to sanction. Over the course of the various drafts and suggested amendments by HR, favourable comments were removed and replaced with critical comments, the overall view of culpability became one of gross negligence and the recommendation of sanction became summary dismissal for gross misconduct instead of a final written warning.
Mr Ramphal was dismissed, and brought a claim of unfair dismissal. The tribunal concluded that the decision was based upon as much investigation as was reasonable in the circumstances and that the decision to dismiss was within the band of reasonable responses open to a reasonable employer. The employment judge held that the decision was ultimately made by Mr Goodchild, and that he did not appear to be “much influenced” by the input of HR.
Mr Ramphal appealed.
The EAT upheld his appeal and remitted the case back to the employment tribunal to consider again in the light the Supreme Court case of Chhabra v West London Mental Health NHS Trust, in which alterations had been made to an investigatory report by HR that went beyond clarification, with the result that the report was no longer truly the product of the investigating officer.
The EAT considered that the decision in Chhabra effectively established an implied term that the report of an investigating officer for a disciplinary enquiry must be the product of their own investigations. As such, the dramatic change in Mr Goodchild’s approach after intervention by HR was “disturbing”, and HR had clearly involved themselves in issues of culpability, which should have been reserved for Mr Goodchild.
The changes were so striking that they gave rise to an inference of improper influence and the employment judge should have given clear and cogent reasons for accepting that there was no such influence.
What should you do?
- Do not be scared to involve your HR department but ensure that HR advice is limited to questions of law, procedure and process and avoid straying into areas of culpability. They are not the decision maker.
- During hearings and meetings, HR should avoid asking questions or answering on behalf of the investigating or disciplinary manager unless something obvious has been missed or clarification is required.
- It is for the disciplining manager to decide what the sanction should be. HR should not advise on what an appropriate sanction should be, other than giving examples of what sanctions similar conduct has attracted in the past.
Amy Jones is a specialist Employment Solicitor. If you need Employment advice please contact Amy on 01382 229111 or email ajones@thorntons-law.co.uk or alternatively contact a member of the Employment Law team.
